Delhi High Court
Md. Shamshad vs State (Nct Of Delhi) on 13 October, 2009
Author: Mool Chand Garg
Bench: Mool Chand Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRIMINAL APPEAL NO. 520/2007
Date of Reserve : 05.10.2009
Date of Decision: 13.10.2009
MD. SHAMSHAD ..... APPELLANT
Through: Ms.Ritu Gauba, Amicus Curiae
VERSUS
STATE (NCT of Delhi) ..... RESPONDENT
Through: Mr.Navin Sharma, APP for the State
CORAM:
HON'BLE MR. JUSTICE MOOL CHAND GARG
1. Whether the Reporters of local papers may be allowed Yes
to see the judgment?
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
MOOL CHAND GARG,J
Crl.M.A.9749/2007 (for delay)
For the reasons stated in the application, the delay is condoned.
Application stands disposed of.
Crl.App.No.520/2007
1. This is an appeal filed by the appellant, Shamshad, who was arrested
at the spot after he tried to rob the complainant, namely, Shri Rajneesh
Bhayana at 85/8 East Moti Bagh, Sarai Rohilla, Delhi on 27.04.05 where he
used to run the business of junk dealer. According to the complainant, the
appellant along with one Anzar Ahmed had come to the place of incident
Crl.App. 520/2007 Page 1 of 12
armed with a revolver while Anzar Ahmed was armed with country made
pistol. Both of them wanted to rob the complainant but on his raising alarm,
the employees of the complainant came to his help who were called by the
complainant at the spot. The appellant and his co-accused were not
successful as they were apprehended at the spot and were handed over to the
Police. Statement was also made by the complainant to the Police dated
27.04.05 which is Ex. PW3/A wherein he stated as under:
Bayan kiya ki mein pata uprokt par rehta hoon aur sarai
rohilla east moti Nagh 85/8 mein meri kabadi ki dukan
hein. Aaj dinank 27.4.2005 ko samay kareeb 12.15 baje
din mein apni dukan mein gaddi par maujood thaa, esi
dauran ek ladka jiska naam pata baad daryakat aab Mod.
Shamshad s/o Mohd. Tahir R/o E-194 JJ Colony vajirpur
delhi maloom huan, dukan ke andar aaya aur isne ek lohe
ka tukda (serap) dikhaya aur iska rate poochan, etne me
mein esko rate batlata, isi dauran isne apni kameej ke
neeche se ek desi katta nikala aur mere sir par laga diya aur
isi dauran teen ladke aur dukan me aa ghuse. Unke paas
bhi kattee veh chaku thee. Mohd. Shamshad ne kahan ki jo
kuch hein nikal de agar short machaya to goli maar deinge.
Jo unme se ek chootee ladke ne jiska naam pata baad
daryakat Anjar Ahmed s/o khaleem R/o Jhuggi JJ Colony
Vajirpur Delhi maloom huan ke paas bhi desi katta thaa ne
sath rakhi tijori se rupye nikale veh ek ladke ne ek kapde ka
thaila mehroom rang jisme keemti kagjaat veh mohar aadee
thee, utha liya thaa. Himaat karke meine ek dam shor
macha diya jo shor sun kar meri labour ke aadmi jo andar
khana khaa rahen thee, meri madad ke liye aaye. Mohd.
Shamshad Hajira ko meine kattee sahit kaboo kiya beh
Anjar Ahmed ko mere naukar Ram Gopal @ Tadar ne
kaboo kiya thaa lekin dusrein do aadmi jinme se ek ki umar
30-35 saal thi veh doosra darmiyane jism ka thaa veh dono
dukan ke bahar khadi maruti vain No. DNC 3456 mein
baithkar bhaag gaye. Shor sun kar aas paas ke dukandar
bhi vahan par aag mein kaboo karte samay enko thoodi
chootein bhi aayee hein. Usei samay meine 100 number
ko phone kiya thaa jo aap may staff meri dukan par aaye
aur meine Mohd. Shamshad Hajira jissee desi katta
baramad huan tha veh Anjar Hajira jiske pass se 1200/-
rupye jisne meri tijori se nikale thee veh ek desi katta
baramad huan thaa yeh sab aapke havale kiya. Aapne mera
bayan likha jo theek hein.
2. The Police after registering an FIR on the basis of the complaint Ex.
Crl.App. 520/2007 Page 2 of 12
PW3/A completed the investigation and filed a challan under Section
392/397 IPC read with Section 25, 54 and 59 of the Arms Act. The said
challan was committed to the Sessions Court as S.C. No. 143/05 by the
Metropolitan Magistrate concerned. The Sessions Judge framed charges
under Section 392,397 IPC r/w Section 27 of the Arms Act to which the
appellant pleaded not guilty.
3. The prosecution to prove its case has examined 12 witnesses namely,
PW1 ASI Pradeep Verma - finger print proficient, PW2 H.C. Rajinder
Prasad, PW3 Rajneesh Bhayana - complainant, PW4 Ram Gopal - employee
of PW3, PW5 Khushwant Kaur - ASI, PW6 Ct. Joginder, PW7 Anglab
Ahmed - owner of maruti van bearing No. DNC 3456, PW8 Mohd.
Zahid - initial owner of maruti, PW9 SI Risal Singh - who went to spot and
apprehended the accused persons, received copy of FIR & rukka from PW6,
PW10 K.C. Varshney - Sr. Scientific officer (Ballastic) who gave the FSL
report regarding the fire arms seized which is Ex.PW9/1, PW11 Captain
Rakesh Bakshi - Nodal officer, Bharti Televentures Ltd., PW12 Mr. Kuldeep
Singh - LDC Shiekh Sarai, Transport Deptt who has brought the entire
record of Maruti Van No. DNC 3456.
4. The complainant appeared as PW3 before the Ld. ASJ and has
reiterated his statement made to the Police in his deposition by stating:
I am running a shop at 85/A, East Moti Bagh, sarai Rohilla,
Delhi. On 27.04.2005, at about 12.15/12.30 PM I was
present at my shop, five persons entered inside my office,
two were having fire arms and two were having knives, one
of them showed me one piece of iron and asked about the
Crl.App. 520/2007 Page 3 of 12
rate. That person immediately thereafter took out a firearm
from his dub of the pant and kept the same on my temple.
At that time three more persons were inside my shop also
took out their weapons and one person was standing
outside my office. The person who placed the firearm on
my temple threatened me to hand over whatever cash
amount, kept in the shop as well as with me and also the
gold which was wearing at that time. He asked not to raise
an alarm. Out of fear I handed over the key of the locker in
my shop to that person. He opened the locker and took out
the money along with one or two other documents with
rubber stamps kept there. I raised alarm. My labour was
sitting at the backside of my shop. When my labour tried
to open the door of my office it was found bolted from
inside. All these accused persons then thereafter tried to
flee form the shop after opening the door of the office. I
meanwhile overpowered one of the persons who had put
the firearm upon me. The witness identified accused
Shamshad, who is present in the court, as the accused who
had put firearm upon him and was apprehended by him.
My labour Ram Gopal had apprehended accused Anjad,
who is present in the court and identified by pointing out.
The other three accused managed to flee in a red maruti van
no. DNC 3456. I rang up the police. The police reached
thereafter about half an hour. One firearm was recovered
from accused Shamshad by the police. My statement was
recorded. Same is Ex.PW3/A. The firearm recovered from
accused Shamshad was taken into possession. It was
opened and examined. It was loaded with one bullet inside.
The sketch of the firearm and bullet was prepared. Same is
Ex.PW3/B. It was seized vide memo Ex.PW3/C after
making a pullenda with a seal. One firearm was also
recovered from accused Anjar Ahmed. It was having one
bullet inside it. The sketch of firearm and bullet was
prepared. Same is Ex.PW3/D. A sum of Rs. 1200/- of my
shop of the denomination of Rs. 100/- was recovered from
accused Anjar Ahmed. The firearm, bullet and the
currency notes were packed in a pullenda which was duly
sealed and was seized by memo Ex.PW3/E. The Crime
Team was also called at my shop and some chance prints
were lifted. The maruti van was recovered from the
Inderlok area after one hour same day. The police had
lifted the chance prints from this maruti van. Accused
Shamshad and Anjar Ahmed were arrested vide memo
Ex.PW3/F and G. Their personal search was conducted
vide memo Ex.PW3/H and I.
At this stage two sealed parcels bearing seal of FSL
are opened. Firearm is Ex.P-1 and P-2, cartridges P-3 and
P-4 are the same which was recovered from the accused.
12 currency notes of the denomination of Rs. 100/- are
Ex.P-5/a to Ex.P-5/12. I do not recognize the third accused
Askeen as he was not the person entered in my shop.
Crl.App. 520/2007 Page 4 of 12
5. It is interesting to note that while in the statement made by the
appellant under Section 313 Cr.P.C. he has taken a defence that he has been
falsely implicated in this case because there was some dispute regarding
immediate payment of dues to the complainant by the appellant and one
Anzar Ahmed. He has not given suggestions in the cross-examination or has
not led any defence evidence to substantiate his plea. No record has been
placed as to whether any dues were payable to the complainant by them or
there was any previous transaction where he might have dealt with the
complainant for the sale of scrap or otherwise on account of which he was
indebted to the complainant. Even the amount was also not disclosed. The
revolver & katta has been seized from the spot by the prosecution of which a
sketch has also been prepared which is Ex.PW3/D and shows that it was a
desi katta though as per the FSL it has not been found to be in working
order.
6. The Trial Judge taking into consideration the evidence which came on
record convicted the appellant & Anzar Ahmed under Section 392, 397 IPC
r/w Section 27 of Arms Act and has sentenced both of them to undergo R.I.
for 7 years.
7. It will be also of assistance to take note of the cross-examination
conducted on Rajneesh Bhayana, the complainant, which is as under:
It is incorrect to suggest that no such incident had taken
place. It is incorrect to suggest that the two accused
apprehended at the spot had ever come to my shop to sell
their material. It is incorrect to suggest that I use to issue
the slips for payment of the junk material and I use to make
Crl.App. 520/2007 Page 5 of 12
the payment after one week. It is incorrect to suggest that
any amount was due to any of the accused from me. It is
incorrect to suggest that the two accused apprehended at
the spot were asking me to settle the account which I
refused and had torn their slips. It is wrong to suggest that
in connivance with the police I have falsely implicated the
two accused in this case. It is incorrect to suggest that IO
after thoroughly in connivance with me has falsely
implicated the accused in this case.
7. A perusal of the cross-examination goes to show that the story of the
appellant in his grounds of appeal that he was to receive a sum of
Rs.16,000/- or that a slip of that amount has been received by him from
Rajneesh Bhayana has not been even put to the witness. It is also not
suggested that the said slip after tearing was thrown outside the shop as is
sought to be urged in the grounds of appeal. No evidence which may go to
show that PW3 was in the habit of issuing similar slip to other persons from
whom he used to purchase the scrap as pleaded in the grounds of appeal has
even been suggested to the witness. The other suggestion given by the
appellant to the aforesaid witness has been denied by him.
8. As regards the other grounds raised by the appellant they have been
dealt with by the Ld. ASJ in the impugned judgment, which reads as under:
11. The evidence of the complainant and his employee
Ram Gopal is direct and convincing. Complainant could
have been a victim of the incident which however was
failed by his courage. There is no reason to believe the
defence as put forward in their statement by the two
accused Shamshad and Anzar Ahmed. Nothing has been
brought to show of their working as rag pickers and their
having dealings with complainant except a verbal plea.
12. On the other hand their arrest is from the spot at the
time of incident itself with loaded firearm and thereafter
there is registration of FIR by PW2 HC Rajinder Parsad
proved by Ex.PW2/A within two hours of the incident
containing all details of the occurrence as reported in the
complaint Ex.PW3/A.
Crl.App. 520/2007 Page 6 of 12
17. However, none of the contention of the defence is to
be accepted as being without merits. The recovery of
mobile phone from accused Shamshad has been shown in
his personal search memo Ex.PW3/II conducted by the IO
and silence of the same in complaint would not make it
doubtful. This recovery as per PW9 SI Risal Singh was
made from accused and even if there is no evidence of
ownership of this mobile connection it would hardly effect
the veracity of the statement of the IO on this point. The
IO has collected the call detailed record of mobile phone of
accused Shamshad which has been proved as Ex.PW9/G.
He has also collected the call detail records of mobile
phone number 9810253414 which according to PW11
Captain Rakesh Bakshi Nodal Officer Bharti Televenture
Ltd. was issued in the name of Mohd. Ashkeen at the
address of A15/115A, DDA Flat, Four storey, Inderlok and
call detailed records of this mobile telephone number has
been proved as Ex.PW9/G. The study of the call records of
the two mobile telephone shows that 5 telephone calls were
made on telephone number 9810253414 on 26.04.2005
from telephone No. 9811796629 and 3 telephone calls were
made on the same number on the date of incident on
27.04.2005. This evidence accordingly coupled with the
fact that maruti van was of accused Ashkeen shows the
involvement on his part by playing a shadow role. His
denial is not to be accepted. The challan delivery of maruti
van was executed by accused Ashkeen and proved as
Ex.PW7/A as pointed out by the APP is of a date
24.03.2004 which is prior to the date of incident and same
mobile phone of accused Ashkeen has been mentioned on
that. Accordingly plea of showing no connection between
accused Ashkeen and mobile connection is worthless and is
to be rejected.
18. Counsel's feeble attempt to negativate the
involvement of accused Ashkeen by placing reliance on the
statement of complainant that he was not at the spot is of no
benefit to his defence. This is not even the police case that
accused Ashkeen was seen by anyone at the spot. Against
him the case of the prosecution is based on the material that
his maruti van was used of which he was the owner and
was in possession and he was in active conversation on his
mobile phone with accused Shamshad on the date of
incident and a day before.
19. The prosecution evidence is convincing and is
documents based coming from independent source leaving
no room for doubt. The prosecution evidence as is held has
proved beyond doubt the charge under Section 120B IPC
against all the three accused and accused Anzar Ahmed and
Shamshad are also held guilty for the charge under Section
392 read with Section 397 IPC and also for the offence
under Section 27 Arms Act for using the fire arms in the
course of committing robbery. They are convicted
accordingly for the same. Dictated and announced in the
Crl.App. 520/2007 Page 7 of 12
open court on 26.02.2007.
9. It has been submitted by learned APP that since the appellant was
arrested from the spot and has been identified by the complainant and was
also found in possession of a desi katta despite evidence of FSL that the
same was not in working order, the substantive offence of attempting to rob
upon the complainant with the help of a deadly weapon stands proved by the
prosecution and, therefore, Trial Judge was right in convicting the appellant
for the offence under Section 392, 397 IPC r/w Section 27 of Arms Act and
has rightly sentenced both of them to undergo R.I. for 7 years each for the
offence under Section 397 IPC and also to pay a fine of Rs. 5,000/- each and
in default of payment of fine to further undergo S.I. for 3 months.
10. Taking all these facts into consideration and having perused the
record, I am of the considered view that the submission made by learned
counsel for the appellant does not inspire any confidence. There is no
infirmity in the approach of Learned ASJ while convicting the appellant.
11. The appellant has also questioned the quantum of sentence awarded to
him by submitting that the katta as per the FSL was not found in a working
order and therefore, it was not a case where the use of deadly weapon can be
attached to the role of the appellant in this case. It is stated that even if the
case of the prosecution is taken at the highest the sentence awarded to the
appellant of minimum RI for 7 years under Section 397 IPC is not justified.
12. However, the arguments addressed on behalf of the appellant that the
katta was not in a working order & could not have been used is of no
Crl.App. 520/2007 Page 8 of 12
consequence because the sketch of the weapon shows that it looks like a desi
katta and moreover it has come in the evidence that the same was taken out
from the shirt by the appellant and was shown to the complainant at the time
of attempting to commit robbery.
13. Reference can be made to a judgment delivered by Apex Court in the
case of Phool Kumar Vs. Delhi Administration 1975 Crl.L.J. 778(1) where
the word "used" has been considered and defined. The relevant portion of
the judgment delivered in that case by the Apex Court is as under:
4. The last submission on behalf of the appellant was that
sentencing him to undergo rigorous imprisonment for 7
years under Section 397 of the Penal Code was illegal and
he aught to have been convicted under Section 392
simpliciter which would have enabled the court on the facts
of this case to pass a lesser sentence of imprisonment.
Reliance was placed upon the majority opinion of the Full
Bench of the High Court of Punjab and Haryana in the case
of State v. Chand Singh, ILR (1970) 2 Punj 108 : (AIR
1970 Punj 532) (FB). The argument was attractive at the
first sight but did not stand our careful scrutiny.
5. Section 392 of the Penal Code provides :
"Whoever commits robbery shall be punished with rigorous
imprisonment for a term which may extend to ten years,
and shall also be liable to fine; and, if the robbery be
committed on the highway between sunset and sunrise, the
imprisonment may be extended to fourteen years."
The sentence of imprisonment to be awarded under Section
392 cannot be less than 7 years if at the time of committing
robbery the offender uses any deadly weapon or causes
grievous hurt to any person or attempts to cause death or
grievous hurt to any person : vide Section 397. A difficulty
arose in several High Courts as to the meaning of the word
"uses" in Section 397. The term 'offender' in that section, as
rightly held by several High Courts, is confined to the
offender who uses any deadly weapon. The use of a deadly
weapon by one offender at the time of committing robbery
cannot attract Section 397 for the imposition of the
minimum punishment on another offender who had not
used any deadly weapon. In that view of the matter use of
the gun by one of the culprits whether he was accused Ram
Crl.App. 520/2007 Page 9 of 12
Kumar or some body else, (surely one was there who had
fired three shots) could not be and has not been the basis of
sentencing the appellant with the aid of Section 397. So far
as he is concerned he is said to be armed with a knife which
is also a deadly weapon. To be more precise from the
evidence of P.W. 16 "Phool Kumar had a knife in his
hand." He was therefore carrying a deadly weapon open to
the view of the victims sufficient to frighten or terrorize
them. Any other overt act, such as, brandishing of the knife
or causing of grievous hurt with it was not necessary to
bring the offender within the ambit of Section 397 of the
Penal Code.
6. Section 398 uses the expression "armed with any deadly
weapon" and the minimum punishment provided therein is
also 7 years if at the time of attempting to commit robbery
the offender is armed with any deadly weapon. This has
created an anomaly. It is unreasonable to think that if the
offender who merely attempted to commit robbery but did
not succeed in committing it attracts the minimum
punishment of 7 years under S.398 if he is merely armed
with any deadly weapon, while an offender so armed will
not incur the liability of the minimum punishment under
Section 397 if he succeeded in committing the robbery. But
then, what was the purport behind the use of the
different words by the Legislature in the two sections,
viz "uses" in Section 397 and "is armed" in Section 398.
In our judgment the anomaly is resolved if the two
terms are given the identical meaning. There seems to
be a reasonable explanation for the use of the two
different expressions in the sections. When the offence
of robbery is committed by an offender being armed
with a deadly weapon which was within the vision of the
victim so as to be capable of creating a terror in his
mind, the offender must be deemed to have used that
deadly weapon in the commission of the robbery. On
the other hand, if an offender was armed with a deadly
weapon at the time of attempting to commit a robbery,
then the weapon was not put to any fruitful use because
it would have been of use only when the offender
succeeded in committing the robbery.
14. Reference can also be made to a judgment delivered in the case of Jai
Prakash Vs. State 1981 Crl.L.J. 1340, where it was held:
21. Therefore, it stands established beyond all reasonable doubt
that the appellant had committed offence of robbery punishable
under Section 392. I.P.C. and as such he had been rightly
convicted. However, it is to be seen if he is liable to minimum
punishment of 7 years as provided under Section 397 I.P.C. Before
I proceed to determine that question I may make it clear that
Crl.App. 520/2007 Page 10 of 12
Section 397 I.P.C. does not make any act an offence. It only
provides minimum punishment for some offences under certain
circumstances i.e. when deadly weapon is used or grievous hurt is
caused or attempt to cause death or grievous hurt is made. The
learned Additional Sessions Judge was under a wrong impression
that Section 397 independently makes any act an offence.
Substantive offences for which Section 397 provides minimum
punishment are robbery and decoity when deadly weapon is used
or grievous hurt is caused etc. Therefore there was no necessity of
framing of two charges one punishable under Section 392 I.P.C.
and the other punishable under Section 397 IPC. Charge should
have been in respect of offences punishable under Section 392 read
with Ss.397 and 34, I.P.C.
23. The word 'uses' was interpreted by Supreme Court in Phool
Kumar v. Delhi Administration, 1975 Cri LJ 778 : (AIR 1975 SC
905). It is laid down that it is not necessary that deadly weapon
must be actually used by the culprit in the robbery or dacoity by
way of causing hurt or brandishing the same and that it is 'used'
within the meaning of Section 397 if the deadly weapon is merely
held out for terrorising or frightening a victim to obtain property.
In the present case threatening by the appellant with a pistol was
sufficient to constitute use of the same.
15. However, as held by the Apex Court in the case of Phool Kumari Vs.
Delhi Administration (Supra), the minimum punishment can be attracted
only where the commission of robbery was successful by user of a deadly
weapon. Thus, in a case where robbery could not be committed or the
attempt to commit robbery failed, then the offender may not attract the
minimum sentence.
16. In view of the aforesaid, since in the present case also the attempt to
commit robbery was foiled by the employees of the complainant by
apprehending the appellant and his associates despite the fact that he was in
possession of a katta which also was not in a usable condition as per the
report of FSL, it cannot be said that the petitioner is liable to attract the
minimum sentence i.e. RI for 7 years.
Crl.App. 520/2007 Page 11 of 12
17. In the aforesaid circumstances, taking all the facts into consideration
including the involvement of the appellant in other cases, the sentence
awarded to the appellant under Section 392/397 IPC is reduced to RI for 5
years while maintaining sentence of fine of Rs.8000/- and in default of
payment of fine, the sentence would only be SI for three months. The
sentence awarded on other counts is maintained.
18. Appeal stands disposed of. The fees of amicus curiae is fixed as
Rs.5000/-. TCR, if any, be sent back along with a copy of this order. A copy
of this order be also sent to the appellant through Jail Superintendent.
MOOL CHAND GARG, J.
OCTOBER 13, 2009 ag Crl.App. 520/2007 Page 12 of 12